Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-11-15
Court OF appeals.

j. ". Brooks vs.. the State; appeal
from Navarro county. As the evidence
in this suit impresses itself upon our
minds, it does lot raise the issue of msn-
slaughter and self-defense, or either Of
said issues, and therefore the court did
| not err in refusing to instruct the jury
upon the law of such issues. And there
WAS no error in refusing defendants APP
| plication for continu 1nce, because same
| does not show that the absent testimony
| is material. Proof of threats made by de-
ceased to take DEFENDANTS life, and that
deceased was man of violent and danger
Gus character, and that defendant had
knowledge at the time Of the homicide OF
such threats and character Of deceased
would be immaterial unless it was shown
th.t at the time Of the homicide the de-
ceased did some act indicating his pur-
| pose then to take the life Of
the defendant, or do him serious bodily
| harm. We have found no error in the
conviction, and the Judgment is at
| irmed. Wilson, J.
Lee Conner vs.. the State; appeal from
Coleman county. This appeal IS from
q conviction of theft Of horse. Ia the
| Indictment both the ownership and the
poss ession of tn horse are alleged to be
in j. G. Benton. The evidence on the
trial showed that on the Gay before GAe
alleged theft, J. G.. Benton loaned the
horse to his brother, D 81. Benton. o.
the morning of the day of the theft, ID.
81. Benton turned the horse over to a
man named Bull who took said horse
to place which D. Fl. Benton designa-
ted and there hobbled out the fee
The hobbling out of the horse was q
plan previously agreed upon between D
q. Benton, Bull and others to catch de-
| PENDANT b Drse ealing. And it was while
the horse was thus hobpled out that it
was stolen. Held: There is fatal yari
| snce between the allegation Of possession
| and the proof. Both the ownership and
possession Of the horse should have been
| alleged to be in D. II. Benton, and neces-
sarily the possession should have been
alleged to h. in him. Reversed and re
msnded. Wills N, j.
S. A. Melton VS.. the Stste; appeal from
Navarro lunty. This is an appeal from
conviction of burglary. The entry is
alleged to have been made in the night
| time. There is not particle OF evldenc.
! TO show that the entry was made either
| 0y threats or fraud. Therefore, if sus-
| thluCu az ukl1 GuC SOnNlCl4Ou lCShS eolO1F
| upon the allegation of an entry by force
IL is shown by the evidence that the house
was open, not door or window closed,
and that defendant in his stocking
feet entered through the open door with
out the consent of anyone and without
any force whatever being used sgsiBss
the building or occupant therein to effac'
the entry. Held: The evidence as to
| -,
charge, nor conviction for burglary. The
| Judgment is therefore reversed and the
cause remanded. White, j.
Jordsn Smith vs.. the State; appeal
ftom Wi cox county. This case app .ars
20 have been tried below by q special
Judge. It is well settled that in such
cases the record upon appeal must sho "
The reasons for the selection of and the
manner in which he became special Judge
In the case before Us the only entry witt
regard to the special judge is the TO low
ng: TUESDAY, September 20,
1887 Hon. j. M. Maxey was
selected by the state and
defendant and was sworn as specie!
Judge to try the case of the State ri
Texas VS.. Jordan Smith, No. 1868" N
reason for the appointment is stated; DC
agreement in writing to the selection OF
| the special judge is set forth; and ne
statement that he took the oath of office
required By the constitution is made tx
cept theoretically. We are Of opinion
that the entry Of the selection OF g specia
Judge is too uncertain In terms to show
even a substantial compliance with the
law. The Indictment in this case de-
scribes the animal stolen as Zone beef
sn animal of the cattle kind" and in evil
dence the animal is proven to have beer
8 COW. Held: The werd "beef' EN-
braces "a cow" and there Is no variance
between the proof and the allegation
For the error pointed out the judgment
is reversed and the cause remarded
White, P. j.
S. A. Meltace vs.. the S ate; sppea
from Navarro county. The indictment il
this case charges an assault with intent
to rape in the first count, and an attempt
to rape in the second. After the evidence
was in, the District Attorney elected &C
prosecute upon second count alone. Ap
pellant had moved TO quesh this count
upon the grounds: o. Because there is
no such offense known to the laws OF this
state as attempt to rape: (2) because
there Can be no conviction for an at
tempt to rape except on trial for the
offense of rape; (S)because it is not diff
ferent mode of alleging the same offtuse
that it alleges breach OF a different
statute. Held: If the accused can legally
be convicted Of the ohense Of an attempt
to commit rspe under ami Indictment fol-
the substantive offense, as conceIed by
him, we can not perceive upon wha,
ground he can complain OF s
conviction for the attempt under an
Indictment which distinctly charges the
acts constituting the crime, for the com
mission OF which he is sought to be pun
ished. The court did not err in refusing
to quasn the second count in the iDdlct-
ment. It is correct and legitimate prac-
tice, when the facts warrant II, to indic'
directly for the attempt, just as in case
for assault with intent to rape, there be-
ing no evidence tending to establish rape
There is no error for which the judgment
should be reversed and it Is affirmed
Hurt, j.
Steve Taylor ys. the State; appeal from
Kaufman county Uuder an indictment fol
rape appellant was convicted OF
an aggravated assault and bat
terry. The indictment contained
two counts: The one alleging the female
| IN have hapu Y1ndnr tho sua nf ton vesrs